McShane v. McShane

• Decision Date: 31 March 1889
• Citation: 19 A. 465,45 N.J.E. 341
• Parties: MCSHANE v. MCSHANE.
• Court: New Jersey Supreme Court

19 A. 465

45 N.J.E. 341

MCSHANE

v. MCSHANE.

Court of Errors and Appeals of New Jersey.

March Term, 1889.

Appeal from court of chancery.

Bill for divorce by William McShane against Martha A. McShane for desertion.

The case was referred to S. M. Dickinson as advisory master, who filed the following opinion:

"The petition in this case is filed by the husband for divorce from his wife on the ground of desertion. The only clause of the statute¹ under which the petition in this case can be maintained is that giving chancery jurisdiction where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and the complainant or defendant shall have been a resident of this state for the term of three years, during which such desertion shall have continued. This jurisdictional fact of residence must be duly proven, like any other fact in the case. The petitioner's evidence cannot be relied upon, exclusively, as to the fact of residence. A divorce is never decreed upon the unsupported testimony of the complainant. The only other witnesses to this essential fact are Annie Graham, Hughes, and J. J. Peters. The first speaks positively to a period reaching back to about July 1, 1887. The other witness, Peter, is the proprietor of the Monarch Hotel, where the petitioner claims he resided for a number of years prior to his moving to 201 Pavonia avenue. This witness has been such proprietor since September, 1884, more than three years prior to the filing of the petition in this case. This witness, apparently, is not able to testify to the petitioner's continued residence at the hotel during all the time he has been proprietor. He continued the hotel register he found there. The petitioner registered there in October, 1883, and again in May, 1884. Witness took charge in September, 1884, and says that since that time petitioner has been at the hotel, off and on, up to about May or June, 1887.' He would be there sometimes two weeks at a time, and then be away for a time. He came there several times during the year.' This is the whole of his testimony. Does this constitute 'residence,' within the statutory meaning of the word? The residence required by the statute concerning divorces, to give the court jurisdiction, means fixed domicile, or permanent home, (Coddington v. Coddington, 20 N. J. Eq. 265,) and that it shall have been continuous, (Sanders v. Sanders, 29 N. J. Eq. 410.) In this case a divorce was refused, although the defendant had been actually served with notice of the suit. The witness Peters should be able to testify with certainty on the question of the petitioner's residence, but the meager facts given by him fall far short of establishing this essential fact of the case. The witness Hughes, although he has been intimately acquainted with the petitioner for six or seven years, cannot testify upon personal knowledge as to...